Lyle Skinner Profile picture
Sep 3, 2022 17 tweets 8 min read Read on X
The last time a Lieutenant Governor unilaterally vetoed a bill occurred on April 19 1945 in PEI.

This was over a bill to allow physicians to prescribe a 6 month supply of alcohol. The @PEIGuardian reported LG Lepage was lobbied by Temperance Federation #peipoli #cdnpoli
PEI LG LePage stated to the Temperance Federation a few days prior to his witholding of Assent to that he was a staunch prohibitionist all his life and was concerned about the bill. He refused to state whether he would veto the bill.

Conveniently the group had a legal opinion!
The logic of the federation was that since the bill to relax prohibited laws was not approved by the people (referendum?) they were calling on the LG to veto the bill as a matter of fairness #peipoli
The Temperance Federation's logic was that since 1918 the will of the majority re prohibition should prevail and "a few men had no right to change a law". This law would destroy the "whole purpose and spirit of the prohibition act" #peipoli #cdnpoli
Mr. Profitt said that the Island government put the amendment through in an "unfair and underhanded way" and islanders looked on the Legislature with contempt.

Miss Sterns assured the LG if he vetoed "generations to come would rise up and call him blessed #peipoli #cdnpoli
On April 19, 1945 during the prorogation ceremony PEI Lieutenant Governor LePage unilaterally refused to grant assent to the bill
The @PEIGuardian editorial at the time expressed concern. The LG had a theoretical constitutional right to veto referencing a prior PEI LG veto on a non government "Church Union bill" in 1924 which would have United various churches on PEI without the consent of congregations
The Guardian then states the LG was within their rights to veto but the advisability of their actions is another question.

In "one man's hands" a non elected "is placed a veto on all legislation" "which is more autocratic than even possessed by the House of Lords"
Recall that appointees to the Office of LG at this time were generally partisan in nature. In PEI, "a future government may be at the mercy of a partisan LG who may render their labour's and legislation null and void through caprice or political malice aforethought" #peipoli
Remember these actions were the consequence of a LG making the unilateral determination that he knew what the will of the people was moreso than the Legislative Assembly of Prince Edward Island which is an elected chamber. This was over a bill to relax prohibition!
The point is that there is a difference between having a power and exercising a power. Unless something is patently exceeding the democratic norms of society such as a Rhodesian style Unilateral Declaration of Independence, there is no role for a LG to substitute their own views
A good example is that in 1892, the PEI LG reserved a bill to abolished the Legislative Council, extended the franchise to mortgage holders and possibly a gerrymander. The Fed's did not grant assent but said that such bills are "entirely within the competence of the Legislature"
A subsequent bill was introduced in 1892 to merge the Legislative Assembly and Legislative Council into a new Legislative Assembly. PEI is the only province to do this. This is also why until the 1990s there were Assemblymen and Councilors in the Assembly.
Of course this isn't the end of the story. LePage's successor LG Bernard gave Royal Assent to the previously vetoed prohibition act bill by letters patent on September 28, 1945. The issue then became can royal assent be given to a vetoed bill?
Naturally a course case arose where the Chief Justice of the PEI Supreme Court in 1948 considered that exact question when looking at costs re a prohibition act offence. Can a LG grant assent to a vetoed bill?
The court ruled that due to the precision surrounding disallowence and reservation in the Constitution, excludes the possibility that a vetoed bill can be granted Royal Assent. A vetoed bill is a dead bill. So the 1945 amendment to the prohibition act was of no force
Again nothing would prevent the Assembly from presenting the LG a new bill for Royal Assent, most likely in a new session due to procedural rules So a hypothetically vetoed bill today would not prevent an Assembly from passing the same bill again.

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More from @SkinnerLyle

Jan 31
This is a very unusual approach & it is unclear exactly what the reference question will be.

Legislative issues except for offences under the Act, can be addressed retroactively by passing a new law.

The usual remedy is to recall the Legislature. What is the issue? /N #nbpoli
Legal retroactivity although allowed in most circumstances starts to violate the rule of law because you are changing the law for actions in the past. There is a presumption that law operates on a go forward basis.
I don't see why Cabinet would send a reference question to the Courts whether the Judicial or Executive Branches can fix a situation where there is no law. That is clearly for the Legislature.

The Courts do not have inherent jurisdiction to correct the absence of a law
Read 18 tweets
Dec 3, 2022
The fact that the Sovereignty Act accidentally gives Cabinet unlimited power to amend any law highlights why Cabinet should not have such powers.

Any errors in orders issued via the sovereignty act will only be noticed after they have the force of law. #abpoli #ableg #cdnlaw
A big error: 4(1)(a)(i) gives Cabinet the power to amend or suspend any law (act or reg) without the Assembly if it deems it in the public interest to prevent harm to Albertans

Cabinet can repeal the fixed elections law or amend the sovereignty act, if it is necessary #abpoli
Recall that it is a Minister who introduces an authorizing motion before the Assembly. The motion can simply say "that Cabinet protect Albertans against all harm that may occur from any federal initiative"

There is no legal requirement for a free vote. It could be whipped
Read 17 tweets
Dec 1, 2022
The Sovereignty Act contains obvious drafting errors like accidently giving Cabinet nearly unlimited power.

Giving Cabinet these powers means no public scrutiny in the Legislature to correct drafting errors before they are law.

#ableg #abpoli #cdnlaw
Specifically any directive by Cabinet to direct a Minister to change a law is only public AFTER the fact (within 30 days).

However, this is separate from the Minister actually changing the law.

Public scrutiny of any drafting errors will only occur AFTER the law is in force. Image
Basically, if the Soveriegnty Act accidentally contains errors which give Cabinet nearly unlimited power, doesn't this highlight the importance of the Legislature to slow things down, to avoid flaws occuring via Cabinet decree?
Read 6 tweets
Dec 1, 2022
There are presently no limits to which acts Cabinet can suspend or amend without the Assembly. If Cabinet concludes it is in the public interest to prevent harm due to a federal initiative, they could amend the Sovereignty Act to remove any limitations on powers #abpoli
Notwithstanding the obvious constitutional issues surrounding federalism, the act as presently drafted can allow a cabinet to amend the Sovereignty Act itself to give itself even more powers which is quite a loophole.
At the basic minimum there should be an amendment to state there are certain acts that cannot be touched by the sovereignty act.

Further I don't understand why cabinet needs emergency powers to amend the Bee Act without the approval of the Legislature.
Read 6 tweets
Sep 1, 2022
Scenarios👑:
1)LG independently refusing to grant Royal Assent
2)Reserving a bill for Assent by the GG either on federal instruction or independently. GG has 1 year to proclaim the bill into law (likely fed Minister of Justice advising)
3) Disallowance by federal decree #abpoli
Disallowance is declaring inoperative a law that is currently in force whereas reservation holds that a law is inoperative unless assented to by the GG

Fed Cabinet has 1 year to disallow. It takes effect when the LG issues a proclamation or by message to the Assembly
The Constitution Act, 1867 is somewhat confusing when it comes to the written texts of the powers. They are found under s.90. This is a catch all section that makes changes to apply the provisions relating to the GG to provincial constitutions with a 2 year window becoming 1. Image
Read 10 tweets
May 10, 2022
The New Brunswick Minister of Health tabled significant changes to the Public Health Act today.

These may appear minor but they provide legislative adjustments so New Brunswick no longer has to resort to using a State of Emergency in a subsequent wave of COVID. #nbpoli #cdnlaw
At first glance, these amendments address several concerns I identified with the current Public Health Act: unclear roles, unclear class orders, allowing closure of premises related to notifiable diseases, increasing fines.

I discussed changes on my blog:
lyleskinner.blogspot.com/2022/04/sugges…
In any legislation there will always be room for improvement. Let me be clear at first glance full credit to Public Health and the Office of the Attorney General.

Bill 104 provides a proper legal framework for New Brunswick to respond to pandemics.
Read 6 tweets

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